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TO: The Honorable City Council
FROM: Steven Kueny, City Manager
DATE : February 16, 1996 (CC Meeting of 2/21/96)
SUBJECT: Bollinger Development Agreement
BACKGROUND:
On December 20, 1995, the Mayor appointed an Ad Hoc Committee
comprised of Councilmembers Hunter and Perez to discuss this
matter with Mr. Bollinger. Discussions have been initiated with
Mr. Bollinger.
DISCUSSION:
City Ordinance No. 59 sets forth the City' s policies and
procedures for consideration and action on Development
Agreements . On February 21, the City Council will be requested
to review the status of the Development Agreement discussions and
determine if the Planning Commission should be directed to
proceed with the required public hearing. The Planning
Commission will then need to recommend approval with
modifications, or denial of the Development Agreement.
Upon receipt of the Planning Commission' s recommendations, the
City Council may then conduct a public hearing to consider
adoption of an agreement.
As you are aware, the City Council must take action on the
Tentative Tract Map no later than March 21, 1996, or it would be
deemed approved pursuant to the Permit Streamlining Act. The
objective is to have the City Council public hearing on March 21 .
STAFF RECOMMENDATION:
Direct staff to initiate the public hearing process .
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AGENDA REPORT
CITY OF MOORPARK ,4C7 ON:
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TO: The Honorable City Council
FROM: Steven Kueny, City Manager
DATE: February 21, 1996 (CC Meeting of 2/21/96)
SUBJECT: Consider Proposed Development Agreement for
Moorpark Country Club Estates (Bollinger)
The City Council Ad Hoc Committee (Councilmembers Hunter and Perez)
and staff have had several discussions with Mr. Bollinger
pertaining to the Development Agreement (Agreement) for Bollinger
Development Corporation (Bollinger) . We have been able to
eliminate a number of issues in order to focus on considerations
and terms and conditions that cannot be solely addressed in the
conditions of approval for the proposed entitlements . The
Committee will continue to meet with Mr. Bollinger to develop
recommended language on the remaining items .
There is concurrence that the Agreement will contain a provision to
provide an annual payment to the City from the golf course
operations . The precise amount and formula are still under
discussion as is the specific means to guarantee payment upon
termination of the Agreement. Guarantee for public access and
continued operation of the courses are also to be included.
Besides the requested entitlements, the primary consideration for
Bollinger is grading approval. While technically the proposed
grading could be argued to be outside the scope of the City' s
Hillside Ordinance, the proposed grading must still be found to be
in conformance with the goals and policies of the City' s General
Plan. The second item related to grading is its timing and the
interrelationship of the residential and golf course portions of
the proposed project. The Committee feels strongly that the
grading for the entire site, which is needed to construct the golf
courses, not be allowed unless all of the infrastructure and build
out of the residential is guaranteed. The Committee recommends
guarantees so that both portions of the project are built in a
timely manner and the City doesn' t end up with just the golf
courses with graded areas, but no homes or conversely homes but no
golf courses .
As the City Council is aware, there have been delays in the project
processing as the project has evolved. The Planning Commission
public hearing was deferred to accommodate two project revisions.
In addition, since the Planning Commission hearings a revised
preferred alternative has been developed that eliminates the direct
access onto "C" Street from the lots. This alternative also
reduces the amount of grading. An EIR addendum has been prepared
and will be available by March 1 for consideration by the Planning
Commission as part of its review of the Agreement.
The Agreement discussions did not start in earnest until January
and have been moving forward. The Committee recommends that any
Agreement be approved by the Council at the same time as the
proposed entitlements, if they are approved.
In order to allow consideration of the Agreement by the City
Council at a public hearing on March 20 and in conformance with
City Ordinance No. 59 to allow for review by the Planning
Commission at a public hearing, the following schedule has been
prepared:
1 . Week of February 23 - Mail notices to property owners of
Planning Commission public hearing.
2 . February 24 - Legal advertisement for Planning Commission
public hearing.
3 . March 4 - Special Meeting of Planning Commission.
4 . March 7 - Planning Commission report to City Council .
5. Week of March 4 - Mail notice to property owners of City
Council public hearing.
6. March 9 - Legal advertisement for City Council public hearing.
7 . March 6 - City Council public hearing for entitlements.
8 . March 20 - City Council public hearing.
Staff Recommendation
Direct staff to initiate public hearing process .
ORDINANCE NO. 59
AN ORDINANCE OF THE CITY OF MOORPARK,
CALIFORNIA, AMENDING THE MOORPARK MUNICIPAL
CODE BY ADDING CHAPTER 9.64 RELATIVE TO
DEVELOPMENT AGREEMENTS
WHEREAS, pursuant to Government Code Section 65864
et seq. , the City may enter into a development agreement
with the owner of property for the development of such
property and shall establish procedures and requirements for
the consideration of development agreements upon the request
of a property owner.
NOW, THEREFORE, The City Council of the City of
Moorpark DOES ORDAIN as follows:
SECTION 1. The Moorpark Municipal Code is hereby
amended by adding Chapter 9.64 to read as follows:
CHAPTER 9.64
DEVELOPMENT AGREEMENTS
Section 9. 64.010 Purpose and Intent.
This chapter is enacted pursuant to Section 65864
et seq. of the Government Code of the State of California in
order to provide a means whereby the city and property
owners can conclude agreements on proposed plans of develop-
ment for specific property. The agreement assures the
property owner that he can develop in accordance with the
terms and conditions of said agreement and assures the city
that the property will be developed in the manner agreed to
therein. Specifically, this chapter is designed to achieve
the following purposes:
( 1) To achieve consistency with the general plan
and any applicable specific plan.
( 2) To contribute to strengthening the planning
process.
( 3) To encourage private participation in the
planning process.
( 4) To reduce the economic costs of development to
the public.
CJK/ORD1997
Section 9 . 64 . 020 Applicability.
The city may enter into a development agreement , as
provided for in this chapter, with any person having a legal
or equitable interest in real property within the city for
the development of such property. For the purposes of this
chapter, the parties to the agreement shall include their
successors in interest .
Section 9 . 64 . 030 Contents of Development
Agreement .
(A) A development agreement shall contain all of
the requirements set forth in Section 9 . 64. 050 ;
(B) A development agreement may include
conditions, terms , restrictions and requirements for
subsequent land use entitlements with respect ' to the
project, or portions thereof; provided, that such
conditions , terms, restrictions and requirements shall not
prevent development of the land for the uses and to the
density or intensity of development set forth in the
agreement .
(C) A development agreement may include a covenant
between the parties to the agreement to form any assessment
district, benefit district, maintenance district or similar
district, or undertake any other procedure, for the
installation or maintenance of required or necessary on-site
or off-site improvements or infrastructure, pursuant to the
terms and conditions described in the agreement , or it may
contain a covenant between the parties to the agreement to
refrain from forming any assessment district, benefit
district, maintenance district or similar district in return
for the giving of other consideration by the parties
thereto, in lieu of such formation.
(D) A development agreement may include terms and
conditions relating to developer financing of necessary
public facilities and subsequent reimbursement over time.
(E) A development agreement may include the
developer ' s agreement to change the design details of any
type of improvement to the project, as such details may be
given in any land use entitlement approved prior to the date
the application for the agreement is filed and identified in
the agreement ; provided, however , that if the agreement
shall be terminated at the behest of the city, or if all or
any portion of the development agreement should be
invalidated, so that the developer does not receive the
benefit of the consideration to be given by and to him
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pursuant to the agreement , the original text of the land use
entitlements, as they existed prior to the date the
application for the agreement was filed shall continue in
full force and effect, and the developer shall have his
original rights and remedies with respect thereto.
(F) A development agreement may include such other
covenants, conditions, restrictions, requirement, rules,
regulations, policies, terms and standards as may be agreed
upon by the parties .
Section 9 . 64 . 040 Preliminary Review.
No application for a development agreement shall be
filed with the director of community development, unless the
city council has decided, after a preliminary review, to
proceed with consideration of the proposal . Request for
preliminary review shall be submitted to the airector of
community development and shall be accompanied by a fee, as
established by resolution of the city council . The request
shall consist of a general description of the proposed
agreement, which description shall include, at a minimum,
the identity of the parties and property, a brief
description of the project, and the term of, and
consideration for , the agreement. The director shall
conduct a review of the request . Thereafter , the director
shall transmit a report and recommendation to the city
council relative to whether the city should further consider
the proposal. The city clerk shall give the person in whose
name the request is submitted not less than ten ( 10) days
prior written notice of the date, time and place when the
request shall be considered and of the right of said person
to be heard. In the event the city council decides to
proceed, an application may be filed pursuant to Section
9 . 64 . 050 .
Section 9 . 64 . 050 Application Requirements
Application for a development agreement shall be
filed with the director of community development on forms
provided by the director and shall be accompanied by a
filing fee, as established by resolution of the city
council, and a proposed form of the development agreement ,
as specified in Section 9 . 64 . 060 .
Section 21 . 64 . 060 Proposed Form of Development
Agreement .
The proposed form of the development agreement
shall consist of plans and narrative relative to the
following:
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. . .
(1) The identity of parties to the agreement;
( 2) A legal description of the entire area of the
property subject to the agreement;
( 3 ) The nature of the applicant ' s legal or
equitable interest in the property;
( 4) A complete description of the project,
including: uses of the property; the
relationship to adjacent properties; the
density of residential uses ; the intensity of
nonresidential uses; the maximum height and
size of structures; on-site and off-site
traffic and circulation plans ; and open space
and recreation areas and facilities;
( 5 ) A description of any geological; seismic or
other safety hazard present on the property
and measures proposed to mitigate the same;
(6 ) Provisions for reservation or dedication of
land for public purposes;
(7 ) The identification and incorporation by
reference of the land use entitlements for the
project, and any phase thereof, granted or
approved by the city prior to the date the ap-
plication for the agreement was filed;
(8) The identification of the types of land use
entitlements for the project, or any phase
thereof, which must be considered for approval
by the city for the project in order to build
the project , or the phase;
(9) The identification and incorporation by
reference of existing rules, regulations and
official policies that are applicable to the
project, and any phase thereof , at the date of
the agreement ;
( 10 ) A description of the consideration for the
agreement and a description of the dates or
conditions upon which it is to be given;
( 11) The proposed starting and completion date for
the project, and any phase thereof;
( 12) The term of the agreement ;
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( 13 ) A statement of the relationship of the
agreement to the general plan and any
applicable specific plan;
( 14) A description of the remedies of the parties
to the agreement; and
(15) A provision that the conditions of the
agreement are binding upon, and inure to the
benefit of, all successors in interest to the
parties to the agreement .
Section 9 . 64 . 070 Review of Application.
After determining that the application is complete
pursuant to Government Code Section 65940 et seq. , the
director of community development shall conduct a review of
the proposed development agreement. Thereafter , the
director shall prepare a staff report and recommendation and
shall set the matter for public hearing by the planning
commission.
)
Section
9 . 64 .080 Recommendation by Planning
Commission.
The planning commission shall hold a public hearing
on each application for a development agreement at the time
and place set for such hearing. Notice of intention to
consider recommendation of an agreement shall be given as
provided for in Sections 65090 through 65094 , inclusive, of
the Government Code, in addition to any other notice
required by law for other actions to be considered
concurrently with the agreement. If and when State law
prescribes a different notice requirement, notice shall be
given in that manner . The commission may, whenever it deems
such action necessary or desirable, continue such hearing to
a time, date and place certain. After the hearing, the
commission shall recommend to the city council approval,
approval with modifications , or denial of the development
agreement. _
Section 9 . 64 . 090 Action by City Council .
Upon receipt by the city council of the
recommendation of the planning commission on an application
for a development agreement , the city clerk shall set the
matter for public hearing by the city council . The city
council shall hold the public hearing at the time and place
1 set therefore. Notice of intention to consider adoption of
an agreement shall be given as provided for in Sections
65090 through 65094, inclusive, of the Government Code, in
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addition to any other notice required by law for other
actions to be considered concurrently with the agreement.
If and when State law prescribes a different notice
requirement for development agreements, notice shall be
given in that manner . The city council may, whenever it
deems such action necessary or desirable, continue such
hearing to a time, date and place certain. After the
hearing, the council shall take action to approve, approve
with modifications or deny the agreement. Development
agreements shall be approved by ordinance of the city
council, which ordinance shall not be adopted by the city
council prior to the developer executing the agreement.
Section 9 . 64 .100 Findings for Approval.
The planning commission shall not recommend
approval, and the city council shall not grant approval, of
a development agreement, or an amendment thereto, unless the
following findings are made:
1. The provisions of the agreement are consistent
with the general plan and any applicable
specific plan; and
2 . The provisions of the agreement are consistent
with this chapter .
Section 9 . 64 .110 Designation on Zoning Map.
Upon the effective date of approval by the city
council of a development agreement , the subject property
shall be identified on the zoning map of the city by the
designation "DA" followed by the dates of the term of the
agreement . Said identification shall be removed from the
zoning map upon termination or expiration of the agreement,
or upon completion in full of the agreement .
Section 9 . 64 . 120 Amendment or Termination By
Mutual Consent.
A development agreement may be amended or
terminated, in whole or in part, by mutual consent of the
parties to the agreement . Notice of intention to amend or
terminate an agreement and the manner thereof shall be
subject to Sections 9 . 64 . 080 , 9 . 64 . 090 and, as applicable,
9 . 64 . 100 of this chapter . Amendment of the agreement shall
be by ordinance of the city council , which ordinance shall
not be adopted by the city council prior to the developer
executing the amendment .
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Section 9 . 64 . 130 Regulations Effecting Development
Agreement .
(A) In the event that state or federal laws or
regulations, enacted after a development agreement has
become effective, prevent or preclude compliance with one or
more provisions of the agreement, such provisions shall be
deemed modified or suspended as necessary to comply with
such state or federal laws or regulations .
(B) A development agreement shall not prevent the
city, in subsequent actions applicable to the project, from
applying new rules, regulations and policies which do not
conflict with those rules, regulations and policies that are
applicable to the project as set forth in the agreement .
Nor shall an agreement prevent the city from denying,
conditionally approving or approving any subsequent project
proposed for the property on the basis of such rules,
regulations and policies that are applicable to the project
at the date of the denial or approval .
(C) A development agreement shall not prevent the
city from approving minor modifications to any land use
entitlement identified in the agreement , provided that the
approval is in accordance with the applicable provisions of
the zoning ordinance relative to such entitlement.
Section 9 . 64 . 140 Recordation of Agreement.
No later than ten ( 10) days after the ordinance
approving the development agreement , or any amendment
thereto or termination thereof , is approved by the city
council , the city clerk shall record a copy of the
agreement, amendment or termination with the county
recorder .
Section 9 . 64 . 150 Annual Review Procedures.
(A) Not less than thirty-five ( 35 ) days prior to
the annual anniversary of the effective date of the
agreement , the developer shall file an application with the
director of community development requesting review of the
agreement . The application shall be accompanied by a filing
fee, as established by resolution of the city council, and
by plans and a narrative describing the following:
( 1 ) The completion of any aspect of the agreement
during the twelve ( 12 ) months prior to the
anniversary date;
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( 2) The progress made towards completion of all
other aspects of the agreement during the
twelve ( 12) months prior to the anniversary
date; and
( 3 ) An explanation, with supporting information,
of aspects of the agreement where good faith
compliance has not been achieved during the
twelve ( 12) months prior to the anniversary
date, and proposals for corrective action to
achieve such compliance.
(B) After determining that the application for
review is complete, the director of community development
shall prepare a report and recommendation and transmit the
same to the city council . The city clerk shall give the
applicant not less than ten ( 10 ) days prior written notice
of the date, time and place when the report and recommen-
dation shall be considered, which shall not be more than
thirty-five ( 35 ) days after the application for review was
determined to be complete, and of the right of the applicant
to be heard. Unless the city council finds and determines ,
on the basis of substantial evidence, that the developer has
complied in good faith with the agreement, it shall refer
the application to the planning commission. If there is
good faith compliance with the agreement, the annual review
process shall be deemed complete and no further action shall
be taken pursuant to this section.
(C) The planning commission shall consider any
application for review referred from the city council at a
public hearing held within thirty-five ( 35) days after the
applicant has paid to the city clerk a hearing fee, as
established by resolution of the city council . Notice of
intention to review the development agreement and the manner
thereof shall be subject to Section 9 . 64 . 080 . If, as a
result of the public hearing, the planning commission finds
and determines, on the basis of substantial evidence, that
the developer has not complied in good faith with the
agreement, the commission shall recommend to the city
council that the agreement be amended or terminated. A
recommendation to amend the agreement shall be subject to
Section 9 . 64 . 100 .
(D) Any party aggrieved by a decision of the
planning commission that the developer has complied in good
faith with the development agreement may appeal to the city
council in accordance with Sections 8163-4 . 1 and 8163-4 . 2 of
the County of Ventura Ordinance Code or any successor
thereto.
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(E) Within thirty-five ( 35 ) days after the
planning commission recommends to the city council that a
development agreement be amended or terminated or an appeal
is filed, the city council shall hold a public hearing
thereon. Notice of intention to consider amendment or
termination of the agreement and the manner thereof shall be
subject to Section 9.64 . 090 .
(F) After the hearing, the city council shall take
action either to continue the development agreement in the
manner and form approved, or to amend or terminate the
agreement on the basis of substantial evidence that the
developer has not complied in good faith with the
agreement . Action to amend the agreement shall be subject
to Section 9 . 64 .100.
(G) In the event the developer fails to execute
the amendment to the development agreement and serve it upon
the city clerk within fifteen ( 15) days after the city clerk
serves the developer with the amendment, as acted upon by
the city council, the agreement shall be deemed terminated
for cause. Service of said amendment shall be deemed
complete upon personal delivery or upon deposit in the U.S.
mail , postage prepaid, addressed to the city clerk at city
hall and to the developer at the mailing address shown on
the application for review. Amendment of the agreement
shall be by ordinance of the city council, which ordinance
shall not be adopted by the city council unless the executed
amendment is timely received from the developer .
SECTION 2 . If any section, subsection, sentence,
clause, phrase, part or portion of this Ordinance is for any
reason held to be invalid or unconstitutional by any court
of competent jurisdiction, such decision shall not affect
the validity of the remainder of this Ordinance. The City
Council declares that it would have adopted this Ordinance
and every section, subsection, sentence, clause, phrase,
part or portion thereof, in respective of the fact that any
one or more sections, subsections, sentences , clauses ,
phrases , parts or portions be declared invalid or
unconstitutional .
SECTION 3 . That this ordinance shall take effect
thirty ( 30 ) days after its passage and adoption.
SECTION 4 . The City Clerk shall certify to the
passage and adoption of this ordinance; shall enter the same
in the book of original ordinances of said City; shall make
a minute of the passage and adoption thereof in the records
of the proceedings of the City Council at which the same is
passed and adopted; and shall , within fifteen ( 15) days
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STATE OF CALIFORNIA )
COUNTY OF VENTURA ) ss.
CITY OF MOORPARK )
DORIS D. BANKUS , City Clerk
of the City of Moorpark, Calfiornia, do hereby certify that the
foregoing Ordinance No. 59 was adopted by the City Council of
the City of Moorpark, at a regular meeting thereof, held on the
16th day of December , 1985, and that the same was adopted
by the following vote, to wit:
AYES: Councilmembers Yancy-Sutton, Ferguson, Prieto,
Woolard and Mayor Weak;
NOES: None;
ABSENT: None. •
WITNESS my hand and the official seal of said City
this 2nd day of December , 198 5;
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CITY CLERK
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